Published on 28 March 2022

FOURTH SECTION

Application no. 57202/21 Elvis KUKAVICA against Bulgaria lodged on 23 November 2021 communicated on 9 March 2022

SUBJECT MATTER OF THE CASE

The application concerns the outcome of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). On 17 March 2020 the applicant, a Croatian national, initiated proceedings, seeking the return of his daughter, born in October 2018, to her habitual place of residence (Germany), after the mother had informed the applicant that she wished to get a divorce and intended to remain in Bulgaria, where she had taken the child. The Bulgarian Ministry of Justice, acting as the Central Authority within the meaning of the Hague Convention, received the applicant’s request on 10 August 2020 and instituted proceedings on behalf of the applicant before the Sofia City Court on 1 October 2020.

On 18 January 2021 the Sofia City Court granted the applicant’s request and ordered that the child be returned to Germany. The court referred to the findings of a psychological expert report indicating the applicant’s abusive behaviour towards the child’s mother and noted that the child’s return to Germany without the mother would place it in an intolerable situation. Nevertheless, the exception under Article 13 (b) of the Hague Convention not to order the return of the child could not be applied, in view of the number of “adequate arrangements” undertaken by the applicant within the meaning of Article 11 (4) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels II bis Regulation”).

Upon the mother’s appeal, in a final judgment of 25 May 2021 of the Sofia Court of Appeal the applicant’s request for the child’s return was turned down. That court held that the undertakings proposed by the applicant to secure the protection of the child from any identified risks within the meaning of Article 13 (b) could not be considered as “adequate arrangements” within the meaning of the Brussels II bis Regulation. Hence, the exception under Article 13 (b) was to be applied and the child was not to be returned to Germany.

The applicant relies on Articles 6 and 8 of the Convention.

QUESTIONS TO THE PARTIES

Did the refusal of the applicant’s request for his daughter’s return to Germany amount to a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, were the domestic proceedings compatible with the procedural requirements of Article 8 of the Convention (see X v. Latvia [GC], no. 27853/09, §§ 93-108, ECHR 2013; and Vladimir Ushakov v. Russia , no. 15122/17, §§ 77-83, 18 June 2019)?